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NEWSLETTER 2013
338
The first regulation explicitly providing for the provision of health
services with public-private partnerships was made with the addition of
the Supplemental Article 7 to Law No. 3359. Pursuant to Supplemental
Article 7, the construction of health institutions may be procured from
private entities where the Higher Planning Committee deems it necessary.
The explicit regulation brought by the Supplemental Article 7 also
fulfills the Constitutional requirement that public services to be procured
from private entities by way of private law contracts shall be determined
by way of law.
Pursuant to Supplemental Article 7 of Law No. 3359, the renovation
of the facilities, procurement of medical equipment, management of the
commercial areas within the facilities and the procurement of non-medical
equipment of health institutions may also be realized by the private party.
The Regulation on the Construction of Health Facilities in return for
Lease and the Renovation of Health Facilities in return for Management
of Non-Medical Services and Areas (“Regulation
”
) entered into force in
2006. The Regulation’s goal is to aid in determining the application of the
principals of Supplemental Article 7 of Law No. 3359.
Law No. 6428
Various actions of annulment were initiated against tenders realized
under Supplemental Article 7 of Law No. 3359 and the Regulation, and
a claim of unconstitutionality was made within this context. The Council
of State found this claim to be of importance, thereby carrying the issue
before the Constitutional Court. The claim of unconstitutionality was
based on the fact that Supplemental Article 7 did not regulate the matter
in detail and many aspects that should have been regulated by law were
in fact regulated with the Regulation.
A new regulation was required in order to eliminate the criticism
directed at Supplemental Article 7 of Law No. 3559 and to facilitate the
financing of ongoing projects. Accordingly, Law No. 6428 was prepared
and Supplemental Article 7 was abolished. The negative implications that
a possible abrogation decision to be handed down by the Constitutional
Court would create were thereby avoided since Constitutional Court
decisions cannot be made retroactively. Since Supplemental Article 7 was